Back
HIGH COURT OF KERALA
SUNIL THOMAS, J
SREELAKSHMI KURIES AND LOANS PVT LTD. – Appellant
Versus
VIJEESH V.M. – Respondent
CRL.A/1375/2007
Liability - Negotiable Instruments Act - [138, 142(b)] - The court assessed statutory compliance regarding notice and liability for cheque dishonor under the NI Act, concluding that the complainant met legal obligations despite allegations of non-proof of actual notice service date.
Fact of the Case:
The complainant claimed the accused failed to remit installments for a chitty and issued a cheque that was dishonored. Despite the complainant's evidence and statutory notice being sent, the accused was initially acquitted due to alleged failure to prove the date of notice service.
Finding of the Court:
The court found that the complainant satisfactorily established compliance with statutory notice requirements, which led to the conclusion that the accused did not discharge his liability, justifying the conviction under section 138 of the NI Act.
Issues: Whether the complainant was required to establish the precise date of service of the statutory notice under the NI Act, and if failing to do so warranted dismissal of the complaint.
Ratio Decidendi: The statutory requirement for notice under sections 138 and 142(b) can be satisfied without an exact service date, provided the complainant demonstrates compliance with the timelines set forth in those sections.
Final Decision: The appeal is allowed; the accused is convicted and fined for the offence under section 138 of the NI Act.
JUDGMENT
Dated this the 15th day of January 2020 The complainant in ST No. 1274/2005 of the Judicial First Class Magistrate-1 Palakkad, aggrieved by the acquittal of the accused under section 255(1) of Cr.P.C. for offence punishable under section 138 of the Negotiable Instruments Act , has preferred this appeal.
2. The case of the complainant was that, they were conducting a kuri, from the Kozhikode Branch, in which the accused had subscribed a chitty for Rs.1,00,000/-. He bid the chitty for Rs.50,000/- and received the amount on execution of necessary documents. He thereafter failed to remit the future installments. Towards the discharge of the existing liability, the accused executed and delivered to the complainant a cheque for a sum of Rs.47,500/- drawn on his account. The cheque was presented for collection but was returned dishonoured. Statutory notice was issued, which was neither replied nor the amount paid. Hence, the complaint was laid alleging commission of offence punishable under section 138 of the NI Act.
3. Before the court below, the accused appeared and pleaded innocence. On the side of the complainant, his power of attorney holder was examined as PW1 . Exts.P1 to P8 were marked. There was no defence evidence . The court below, on an evaluation of the available materials concluded that the complainant had failed to comply with the statutory formalities as envisaged under the NI Act and acquitted the accused. This is under challenge .
4. Heard the learned counsel for the complainant and the learned counsel for the accused.
5. The case of the complainant is sought to be established through the oral testimony of PW1. Ext.P2 is the cheque dated 2/2/2005. The cheque was returned dishonoured as evidenced by Ext.P3 memo dated 8/2/2005, issued by the drawee Bank. Ext.P4 dated 2/2/2005 is the memo issued by the payee bank. Ext.P5 is the statutory notice dated 7/3/2005. Ext.P6 is the postal receipt dated 9/2/2005 evidencing the dispatch of the original of Ext.P5. Ext.P7 is the acknowledgment card which bears the signature of the accused. The complaint was laid on
23/4/2005.
6. In the complaint, it was specifically pleaded that the accused received lawyer notice on 10/3/2005. However, the court below, referring to Ext.P7 acknowledgment card, held that it did not prove the date of service of lawyer notice and the complaint failed to prove the actual date of service of the lawyer notice. It was held that though complainant had stated in the complaint that it was served on the accused on 10/3/2005, in the chief affidavit of PW1 it was not averred. The court below on the basis of the above, held that the serving of notice on accused was a fact in issue which has to be proved by the complainant like any other fact in issue and there is no presumption as to the serving of lawyer notice. The contention of the counsel for the complainant that the impression of postal seal with date inscribed on Ext.P7 may be considered as the date of service of notice was negatived on the reasoning that the date of actual service may be different from the date inscribed on the acknowledgment card.
7. The accused has no case that statutory notice was not served on him. He has also no case that notice was not sent in correct address or that the signature seen in Ext.P7 was not his signature. The crucial question that arises is whether the statute requires the complainant to establish the actual date of service of notice on the accused. Though Ext.P7 acknowledgment card bears the signature of the accused, he has not written the date of receipt. Only his signature is affixed on the acknowledgment card. The stamp of the Kozhikode post office is seen affixed bearing the date as 10/3/2005. In the complaint it was specifically pleaded that the notice was served on 10/3/2005. The acknowledgment card bearing the above date was produced along with the complaint. The averment that it was served on 10/3/2005 was not challenged in the cross examination of PW1. In t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
